How to Beat a Drink Driving Charge in NSW

How to Beat a Drink Driving Charge in NSW

Drunk driving is a serious offence and is a huge factor in motor vehicle fatalities. In an attempt to reduce the number of deaths due to drink driving, NSW conducted approximately 3.4 million random breath tests last year alone. According to Transport Accident Commission, the 99.6% of drivers tested did not exceed legal blood alcohol levels. However, close to one in five drivers and riders who lost their lives in the last five years had a BAC of greater than 0.05.

Statistics show that 18 to 20% of all fatal accidents in NSW involved drink driving. From 2014 to 2015 48 drivers and riders were killed with a BAC of greater than 0.05

Blood Alcohol Concentration or BAC   

BAC is a crucial part of the drink driving arrest process. The test measures the amount of alcohol in a person’s system (grams of alcohol per 100 millilitres of blood). NSW’s three-tier blood alcohol concentration (BAC) limit structure considers the type of licence held by the driver holds and the type of vehicle driven:

  • A Zero BAC limit applies to learner drivers/riders and Provisional 1 and 2 drivers/riders.
  • The 0.02 BAC limit applies to drivers operating vehicles with a “gross vehicle mass” greater than 13.9 tonnes, vehicles carrying dangerous goods, and public vehicles (i.e. taxi or bus drivers)
  • The 0.05 BAC limit applies to holders of ALL other licences (including overseas and interstate licence holders) not subject to a 0.02 or zero limit

Police Authority and Being Pulled Over for Random Breath Testing

NSW police can stop drivers at random and administer a random breath test or RBT. Random breath testing started in 1982. By 2012 the number of alcohol-related fatal crashes dropped from 40 percent to about 15 percent of all fatalities. Now, every police car in NSW is mobile RBT equipped. A BAC over the legal limit generally results in an arrest, with an additional breath analysis test administered at a police station. The law requires drivers to submit to BAC testing. Refusing could result in charges and fines equivalent to those imposed for the highest BAC level.

If pulled over for a random breath test it is advised to be cooperative when dealing with the police. Stick to answering only those questions asked of you since volunteering information may do you more harm than good.

What the Court Considers

When ruling on penalties and driving disqualifications, courts consider several factors, including:

  • The driver’s belief as to whether they were over the legal limit
  • Specific reasons as to why they chose to drive
  • Whether a BAC over the legal limit was discovered through a Random Breath Test or through dangerous driving
  • The intended length of the driving journey
  • The number of people (passengers, members of the public etc.) placed at risk by the drink driving
  • If a collision occurred
  • The impact of a licence disqualification on the driver or his or her dependents
  • The availability of alternate transportation
  • Driving history
  • The likelihood of reoffending

Punishments for Drink Driving

The ramification of a drink driving conviction can be far reaching, ranging from fines to having your disqualified. How long you lose your driving privileges depends greatly upon the BAC reading, whether this is your first offence and the circumstances surrounding the offence.

Some serious drink driving offences can even result in a gaol sentence. A remedy used for repeat or serious offenders is a mandatory alcohol interlock order which requires installation of an electronic breath testing device linked to vehicles’ ignition systems. Other sentencing options include entering a Traffic Offender Program, which may help to reduce penalties.

If your blood-alcohol reading is low or mid-range, and you have a good driving record, you may be eligible for a section 10 “no conviction”. If the court chooses not to impose a conviction, pursuant to “Section 10”, you will avoid disqualification of your licence.

Defences to Drink Driving Charges

A common defense for a drink driving charge is the fact that a person’s BAC can be lower at the time of driving then when he or she was tested by police. This is because BAC rises 30 min to 1 hour after alcohol consumption.   In these types of circumstances various things need to be considered including when the testing was administered, when and what type of food was consumed, a person’s age/weight/gender, and time of first and last drink. Depending on the results, the police could reduce a charge of ‘high range’ to ‘mid’ or ‘low range drink driving’ or withdraw the charge altogether.

Another possible defense is Honest and Reasonable Mistake.  A person could honestly believe they were under the limit when driving. However, proving reasonably believe they were under the limit could be a challenge, especially if he or she consumed quite a few alcoholic beverages over the course of an evening.

Finally, when the breath testing was administered is important because legally the police cannot test someone two hours or more since he or she last drove.

Obtaining Legal Representation for Drink Driving Charges

A drink driving charge can happen to anyone. You are out having a few pints with friends and next thing you know you are blowing over the legal limit at a random breath test. No one intentionally sets out to put themselves or others at risk. But if charged what do you do?

If legal aid is not an option, lawyer fees may be money well spent when going to court for a drink driving charge. Lawyers know the ins and outs of the court systems. They understand what items to emphasise when presenting a case. Even for those planning to plead guilty, an attorney can help advocate for lesser sentences and fines.